### IN THE TENTH COURT OF APPEALS
No. 10
- 12
- 00011
- CV ABBAS KHOSHDEL, M.D., LLO Y D ASCHBERGER, TERRI PURSLEY, AND JAMIE W ILLIAMS , Appellant s v.
CHARLES GOOSBY , Appellee

From the 12th District Court Walker County, Texas Trial Court No. 24,620

MEM ORANDUM OPINION
In this interlocutory appeal, Appellants Abbas Khoshdel, M.D., Lloyd Aschberger, P.A., Terry Pursl e y, and Jamie Williams 1 appeal the trial court’s denial of their motion for summary judgment on their qualified

- immunity affirmative defen se to Appellee Charles Goosby’s claim for deliberate indifference to a serious medical need. Goosby , an inmate at the Wynne Unit in Huntsville, sued Dr. Khoshdel and

1 The Texas Department of Criminal Justice was also sued, but it is not a party to this interlocutory appeal.Khoshdel v. Goosby Page 2

Aschberger , a physician’s assistant, for their role in the treatment of Goosby’s broken

a rm in the Wynne Unit . He sued Purs l e y (an administrative associate in the Wynne Unit infirmary) and Williams (a practice manager in the Wynne Unit infirmary ) because they did not act in getting proper medical treatment for him , and he further alleged that Williams failed to process his medical grievance as an emergency grievance. Appellants moved for summary judgment on their affirmative defense of qualified immunity from suit on Goosby’s deliberate

- indifference claim.

Section 1983 creates a private rig ht of action to vindicate violations of rights, privileges, and immunities secured by the Constitution and laws of the United States. Rehberg v. Paulk , 132 S.Ct. 1497, 1501 (2012). A prison official’ s deliberate indifference to a substantial risk of seri ous harm to a prisoner violates the Eighth Amendment’s prohibition against cruel and unusual punishment. Farmer v. Brennan , 511 U.S. 825, 828 (1994); Estelle v. Gamble , 429 U.S. 97, 104 (1976). Deliberate indifference is an extremely high standard to mee t. Gobert v. Caldwell , 463 F.3d 339, 346 (5th Cir. 2006). To establish deliberate indifference, a prisoner must show that the prison official knew of and disregarded an excessive risk to the prisoner’s health or safety. Farmer , 511 U.S. at 837. The pri soner must show both that the official was aware of facts from which the inference could be drawn that a substantial risk of serious harm existed and that the official actually drew the inference. Id. Heirs of Del Real v. Eason, 374 S.W.3d 483 , 486

- 87 (T ex. App.

— Eastland 2012, no pet. h.).
“An official’s failure to perceive and to alleviate a risk is not an infliction of punishment. Moreover, negligent medical treatment is not a violation of section 1983. ” Tex. Dep’t of Crim. Just ice v. Thomas, 263 S.W. 3d 212, 219 (Tex. App.

— Houston [1st Dist.] 2007, pet. denied) (citations omitted). Evidence of inadvertent failure to provide
medical care or negligent diagnosis is insufficient to establish “unnecessary and wanton infliction of pain” in violation of the Eighth Amendment. Cole v. Frizzell, No. 13

- 07

-Khoshdel v. Goosby Page 3

00092

- CV, 2008 WL 4117216, at *3 (Tex. App.

— Corpus Christi Aug. 14, 2008, no pet.) (mem. op.) (citing Wilson v. Seiter, 501 U.S. 294, 297, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) (holding that “inadvertent fail ure to provide adequate medical care” fails to
establish the re quisite culpable state of mind) )

.

“[T]he facts underlying a claim of ‘deliberate indifference’ must clearly evince the medical need in question and the alleged official dereliction.” Johnson v. Treen , 759 F.2d 1236, 1238 (5th Cir. 1985) (citing Woodall v. Foti , 648 F.2d 268 (5th Cir. 1981)); County of El Paso , 180 S.W.3d at 863 (holding that an inmate must prove that a jail official was subjectively aware of facts from which an inference could be drawn that a substantial risk of serious harm existed and that the jail official actually drew such an inference). Specifically, a plaintiff must demonstrate that prison officials “refused to treat him, ignored his complaints, intentionally treated hi m incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard for any serious medical needs.” Domino v. Tex. Dep't of Criminal Justice , 239 F.3d 752, 756 (5th Cir. 2001) (quoting Johnson , 759 F.2d at 1238); County of El Pas o , 180 S.W.3d at 863. Medical records of sick calls, examinations, diagnoses, and medications may rebut an inmate’s allegations of deliberate indifference. Banuelos , 41 F.3d at 235 (citing Mendoza v. Lynaugh , 989 F.2d 191, 193

- 95 (5th Cir. 1993)); County of El Paso , 180 S.W.3d at 868. Davis v. Barnett, No. 02

- 09

- 00207

- CV, 2010 WL 3075670, at *4 (Tex. App.

— Fort Worth Aug. 5, 2010, no pet.) (mem. op.)

. Qualified or official immunity from suit is available

... to government officials sued in their individual capacities under section 1983. Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727 (1982); see also City of Hempstead v. Kmiec, 902 S.W.2d 118, 120 n. 1 (Tex. App.

— Houston [1st Dist.] 1995, no writ) (noting that “the term ‘official immunity’ is confusi ng because official immunity covers acts performed by a government official in the person’s individual capacity, not in the person’s official capacity”). Government officials performing discretionary functions have qualified immunity from a suit for damag es under section 1983 so long as the official’s conduct does not violate clearly established constitutional or statutory rights of which a reasonable person would be aware. Padilla v. Mason , 169 S.W.3d 493, 502 (Tex. App.

— El Paso 2005, pet. denied); Scott v. Britton , 16 S.W.3d 173, 180 (Tex. App.

— Houston [1st Dist.] 2000, no pet.).Khoshdel v. Goosby Page 4

A legal right is “clearly established” when the “contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton , 483 U.S. 635, 640, 107 S.Ct. 3034, 3039 (1987). When a governmental official asserts the affirmative defense of qualified immunity by pleading good faith and demonstrating that his actions were within his discretionary aut hority, the summary judgment burden shifts to the plaintiff to show that the defendant’s conduct violated clearly established statutory or constitutional rights of which a reasonable person would have been aware. Newman v. Kock , 274 S.W.3d 697, 705 (Tex. App.

— San Antonio 2008, no pet.); Thomas v. Collins , 860 S.W.2d 500, 503 (Tex. App.

— Houston [1st Dist.] 1993, writ denied). The plaintiff must show: (1) the official’s conduct violated a federally guaranteed right; (2) the right was clearly established; a nd (3) the official’s conduct was objectively unreasonable in light of the clearly established right. Thomas , 860 S.W.2d at 503. Objective reasonableness is a question of law for the court when deciding qualified immunity in a section 1983 action. Hare v. City of Corinth , 135 F.3d 320, 328 (5th Cir. 1998); see also Poteet v. Sullivan , 218 S.W.3d 780, 792 (Tex. App.

— Fort Worth 2007, pet. denied) (recognizing that objective reasonableness is a matter of law). Hill v. Trinci, No. 14

- 10

- 00862

- CV, 2012 WL 30 16855, at *3

- 4 (Tex. App.

— Houston [14th Dist.] July 24, 2012, no pet. h.) (mem. op.); see also Livingston v. Taylor, No. 13

- 07

- 00690

- CV, 2009 WL 2397542 , at * 2

- 3 (Tex. App.

— Corpus Christi Aug. 6 , 2008, no pet.) (mem. op.); Thomas, 263 S.W.3d at 219.

In dec iding whether the medical staff was entitled to qualified immunity, we apply a bifurcated analysis. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) [, overruled in part by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.E d.2d 565 (2009)] . First, we determine whether the medical staff ’ s alleged conduct violated a constitutional right. Id. Second, we determine whether the right was clearly established; that is, whether it would be clear to a reasonable official that his c onduct violated that right. Id. The threshold question is whether the facts alleged, taken in the light most favorable to the party asserting the injury, show that the officer's conduct violated a constitutional right. Id. If the facts do not show a con stitutional violation, the official is entitled to immunity. Id. If, on the other hand, violation of a constitutional right is shown by the facts alleged, the next step is toKhoshdel v. Goosby Page 5

determine whether that right was clearly established at the time of the alleged violation. Id.
McBride v. Tex. Dep’t of Crim. Just ice , No. 13

- 07

- 00130

- CV, 2008 WL 3971102, at *3 (Tex. App.

— Corpus Christi Aug. 28, 2008, pet. denied) (mem. op.) . Courts now have
discretion in deciding which of the two prongs of the Saucier qualified

- immunity analysis should be address ed first

. Pearson , 555 U.S. at 2 36 , 129 S.Ct. at 818. The summary

-

judgment evidence consists of Goosby’s prison medical records and grievances , the affid avit of Bobby Vincent, M.D., the Huntsville District Medical
Dire ctor for the University of Texas Medical Bran ch, Correctional Medical Care (UT M B

CMC) , and the affidavit of Isaac J. Saxon, Jr., the Cluster/District Practice Manager for the Northwest District of the University of Texas Medical Branch, Correctional Medica l
Care. It is undisputed that Goosby fell in the shower and fractured his right arm (distal radius) in the early morning hours of July 18, 2008. Within hours of the fall, Goosby

was transported by van to the East Texas Medical Center Trinity Hospital (a “free

world” hospital), where he received an x

- ray, a splint, and a recommendation that he be given Tylenol #3 for pain. Aschberger evaluated Goosby later that day and ordered
additional x

- rays, Darvocet N

- 100 (a narcotic pain reliever similar to Tylenol #3), Motrin (800 mg), and continued use of the splint. Aschberger also submitted an expedited request for a consultation with an orthopedist with UTMB

- CMC in Galveston

. The evidence then reflects the following events:

 On July 21, Aschberger reevaluated G oosby, ordered a cast for four weeks, re

ordered the pain medication, and advised Goosby to keep his appointment withKhoshdel v. Goosby Page 6

the UTMB orthopedist. Goosby ended up missing this initial appointment because of a norovirus outbreak at the Wynne Unit that led to a un it

- wide quarantine and lockdown. Over the next two days, Aschberger changed Goosby’s work restriction so that he was medically unassigned to work, and Aschberger ensured that Goo sby had access to the Darvocet at the “pill window.”

 On August 4, Goosby com plained of pain, and the next day Aschberger saw him and not only ordered the requested medication but changed Goosby’s housing restriction to include a low

- bunk restriction and ground restriction.

 On August 19, Dr. Abbas Khoshdel evaluated Goosby. Becau se Goosby had missed his initial appointment, Dr. Khosh d el submitted a second request for an expedited consultation with a UTMB orthopedist.

 On September 3, Goosby submitted an I

- 60 requesting that Dr. Khoshdel submit another request for an expedited cons ultation with a UTMB orthopedist because Goosby had again missed his scheduled appointment, this time because of Hurricane Gustav , which caused the temporary closure of the UTMB facility in Galveston

.

 On September 15, Goosby submitted another I

- 60, again requesting that Dr. Khoshdel submit request for an expedited consultation with a UTMB orthopedist and referring to another storm. This reference was to Hurricane Ike, which struck Galveston on September 13 and caused major damage to the UTMB facility, wh ich had been evacuated and had to close because of the damage

.

 On October 3, Aschberger saw Goosby , removed the cast , and took further x

- rays to check on the arm’s healing status. He also recommended Naprosyn for pain.

 On October 9, Aschberger followed up with Goosby upon receiving the radiology report from the October 3 x

- rays and gave Goosby a 90

- day medical pass. Aschberger also submitted another expedited request for an orthopedist consultation, noting that Goosby’s previously scheduled appointments had been canceled because of the norovirus quarantine and the hurricanes.

 On October 16, Goosby submitted an I

- 60 complaining of pain and requesting reapplication of the cast. Aschberger saw Goosby the next day, ordered and applied a splint, and recomme nd ed continued use of Naprosyn.

 On October 23, Goosby was seen via Digital Medical Services ( DMS), a means of seeing the patient via video by staff at a remote unit , by the UTMB Galveston orthopedics staff. He was diagnosed with a non

- union of the distal right radius,Khoshdel v. Goosby Page 7

and surgery was recommended and was to be scheduled for mid

- November. Dr. Natividad, the orthopedic surgeon, had apparently anticipated that the UTMB hospital in Galveston would be reopened by then, but it remained officially closed until J anuary 2009. The closure led to a surgery backlog, and Goosby’s surgery did not occur until February 5, 2009.

 On November 21, Goosby submitted an I

- 60 complaining of pain and inquiring whether his surgery had been scheduled. He was informed that the UTM B hospital in Galveston was not operational and was being repaired and that the scheduling would be handled when the hospital returned to full operation.

 On December 1, Goosby filed a Step 1 Grievance complaining of the delays in treatment and requesting that he be sent to an outside facility for treatment. Pursley informed Goosby that the grievance was forwarded to the medical department . Williams responded by noting Goosby’s prior treatment, the cancelled appointments and their reasons, and that his su rgery was scheduled at that time for January 2009.

 On December 2, Goosby complained again of pain and was prescribed the anti

inflammatory drug Mobic by Michael Dome, another physician’s assistant. Dome also found that a referral to a “free

- world” medica l facility was not necessary.

 On December 21, Goosby submitted an I

- 60 requesting renewal of his expiring prescription and splint pass. Aschberger saw Goosby the next day and renewed both items.

 On December 23, Dr. Khoshdel ordered an x

- ray in preparati on for Goosby’s December 27 DMS visit with the orthopedics staff.

 On January 11, 2009, Goosby complained again of pain, and on January 14 was prescribed Nortiptyline.

 On February 5, 2009, Goosby underwent open reduction internal fixation surgery. In his affidavit, Dr. Vincent states that UTMB

- CMC is contracted to provide health care to TDCJ offenders (inmates) and that CMC Scheduling in Galveston makes all specialty (such as orthopedics) appointments and surgical scheduling. No unit physician, physician ’s assistant, practice manager, or administrative assistant has theKhoshdel v. Goosby Page 8

ability to schedule or prioritize specialty appointments or surgeries. Dr. Vincent further states that, because Goosby’s arm was either in a cast or a splint, he did not have an
acute med ical condition that would have qualified him to be sent to a “free

- world” hospital. In their first issue, Appellants assert that Goosby has not established deliberate
indifference to a serious medical need. The gist of Goosby’s deliberate

- indifference
cla im against Appellants is that they delayed surgery and that they (including Williams and Pursley) 2 fail ed to send him to a “free

- world” hospital for surgery during the time when he could not be surgically treated at UTMB Galveston. Indulging all reasonable inferences in favor of Goosby and taking all evidence favorable to him as true, we conclude that Appellants met their burden of showing that there is no genuine issue of material fact and that they are entitled to judgment as a
matter of law on the issue of qualified immunity. The summary judgment evidence
does not indicate that Appellants were deliberately indifferent to Goosby’s medical
needs. A delay in medical care violates the Eight Amendment only if it i s due to
deliberate indifference and the del ay results i n substantial harm

. Mendoza v. Linaugh, 989 F.2d 191, 195 (5th Cir. 1993); see also Smith v. Har ris, 401 Fed. Appx. 952, 953 (5th Cir.

2 In his brief, Goosby asserts that Williams and Pursley had th e authority to send him to a “free

- world” facility. We assume without deciding that they did, but we also hold that, in their administrative roles, including their processing of Goosby’s grievance, Goosby has not demonstrate d deliberate indifference to hi s medical needs in violation of his constitutional rights. See Criollo v. Milton, 414 Fed. Appx. 719, 721 (5th Cir. 2011) (affirming dismissal of deliberate

- indifference claim against prison’s practice manager and program administrator because their role in grievance process was no role in inmate’s medical treatment); see also Marquez v. Woody, 440 Fed. Appx. 318, 322 (5th Cir. 2011) (affirming summary judgment on deliberate

- indifference claim against prison’s practice manager, who had no role in providing medical care to inmate).Khoshdel v. Goosby Page 9

2010). As for the missed and delayed appointments and the delayed surgery, the record is plain that Appella nts had no control over scheduling with UTMB

- CMC , and Goosby
has not shown deliberate indifference for that reason. Goosby also cannot show
deliberate indifference for the delayed surgery because the record shows that delays were caused by a virus quarant ine, two hurricanes, and the closure of the UTMB
Galveston hospital for months because of the damage caused by Hurricane Ike

. Furthermore, “ the plaintiff must show that the officials ‘ refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard for any serious medical needs. ’ ” Domino v. Tex. Dep’t of Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001). T he evidence in
this case plainly shows that Goosby con sistently received medical care (x

- rays, a cast and splints, and medication) whi le he was waiting for surgery. See Fails v. DeShields, 349 Fed. Appx. 973, 976 (5th Cir. 2009) (“ Deliberate indifference is especially hard to show when the inmate was provide d with ongoing medical treatment.” )

. As for Goosby’s primary complaint that Appellants should have sen t him to a
“free

- world” hospital for surgery when he was unable to have surgery at UTMB
Galveston , the only summary judgment evidence is Dr. Vincent’s aff idavit testimony
that , because Goosby’s arm was either in a cast or a splint, he did not have an acute medical condition that would have qualified him to be sent to a “free

- world” hospital. Goosby’s disagreement with this medical judgment cannot establish deliberate
indifference. “ An inmate ’ s disagreement with the kind of medical treatment that he has received is insufficient as a matter of law to state an Eighth Amendment violation. ”Khoshdel v. Goosby Page 10

County of El Paso v. Dorado, 180 S.W.3d 854, 868 (Tex. App.

— El Paso 20 05, pet. denied) (citing Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997) , and Young v. Gray, 560 F.2d 201, 201 (5th Cir. 1977) ); see Lagaite v. Uy, 347 S.W.3d 890, 892 (Tex. App.

— Amarillo 2011, no pet.) (“ While it is true that inmates are entitled to medical care, they are not entitled to the type of care they choose. ”) (citations omitted)

. The summary judgment evidence does not indicate that Appellants knew of and disregarded an excessive risk to Goosby’s health or safety . T herefore, Goosby failed to
demonstrate deliberate indifference to his medical needs in violation of his constitutional rights. Having failed to find such a violation, our analysis is complete.
See McBride, 2008 WL 3971102, at * 4 (citing Saucier, 533 U.S. at 201, 121 S.Ct. at 21 56). Appellants a re entitled to qualified immunity from suit on Goosby’s claims. Appellants ’ first issue is sustained, and we reverse the trial court’s den ial of their motion for summary judgment. We render judgment that Goosby take nothing on his
secti on 1983 claim against Appellants because they have qualified immunity from suit. We remand this case for further proceedings consistent with this opinion.

REX D. DAVIS Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins R eve rsed and rendered and remanded Opinion deliv ered and filed Novem ber 1 , 2012 [CV06]